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CCR v. Obama (formerly CCR v. Bush) Historic Case

At a Glance

Current Status

On June 10, 2013, the Ninth Circuit Court of Appeals affirmed the dismissal of the case. On October 3, 2013, CCR’s petition for en banc review was denied. One March 23, 20104, the Supreme Court denied cert.

Date Filed:

January 17, 2006

Counsel:

Case Description

In December 2005, the New York Times broke the story that, for more than four years, the NSA had engaged in a widespread program of warrantless electronic surveillance of telephone calls and emails, with the approval of President Bush and in violation of the Foreign Intelligence Surveillance Act (FISA). FISA explicitly authorizes electronic surveillance for the purposes of collecting foreign intelligence only upon the order of federal judges on a special, FISA court and authorizes warrantless wiretapping for only the first fifteen days of a war. Wiretapping without specific, statutory authority is explicitly criminalized. President Bush never sought to amend the statute; he simply violated it by authorizing warrantless wiretapping of Americans without statutory authority or court approval.

CCR filed CCR v. Bush (later, CCR v. Obama) in the Southern District of New York, on behalf of itself and on behalf of CCR attorneys and legal staff representing clients who fit the criteria described by the Attorney General for targeting under the surveillance program. The case was filed against President George W. Bush, the head of the National Security Agency (NSA), and the heads of other major security agencies, and argued that the NSA surveillance program violated FISA’s clear criminal prohibitions on such surveillance, exceeded the President’s authority under Article II of the Constitution, and violated the First and Fourth Amendments.

CCR and its legal staff represent, or have represented, hundreds of men detained indefinitely without charge at Guantánamo; Maher Arar, a Canadian citizen who was accused of al Qaeda ties and then rendered from the United States to Syria to be tortured; and Muslim immigrants unreasonably and wrongfully detained in the U.S. for months without probable cause or criminal charges in the wake of 9/11. In the course of representing these clients, our lawyers have participated in and exchanged innumerable telephone calls and emails with people outside of the United States, including our clients, our clients’ families, outside attorneys, potential witnesses, and others. CCR v. Bush sought to protect our right to represent clients free from unlawful and unchecked surveillance.

More damning evidence emerged after the complaint was filed: Assistant Attorney General William Moschella acknowledged in a submission to Congress that attorneys are not categorically excluded from those who are surveillance targets under the program; the New York Times reported that “[t]he Justice Department does not deny that the government has monitored phone calls and e-mail exchanges between lawyers and their clients as part of its terrorism investigations in the United States and overseas” and that senior Department of Justice officials “knew of…a handful of terrorism cases…in which the government might have monitored lawyer-client conversations”; the judge in CCR’s case granted summary judgment in another case, Al Haramain v. Obama, based on an inadvertently-leaked document which purportedly showed that lawyers for a controversial domestic charity had been subject to NSA surveillance.

Arguing that the NSA surveillance was illegal because it lacked judicial approval or statutory authorization, CCR v. Bush originally sought an injunction that would prohibit the government from conducting warrantless surveillance of communications in the U.S. By January 2007, the administration claimed it had shut down the original program, having received approval from a FISA judge to carry out the same surveillance pursuant to a court order. Those orders were apparently overturned by other FISA judges hearing the renewal applications. Almost immediately, the administration sought new authority from Congress. That authority came, first, in the Protect America Act (PAA), which became law in August 2007, days before a scheduled oral argument in CCR v. Bush and, later, after the PAA expired, in the FISA Amendments Act, which passed in the wake of a crucial switch in favor of the Act by then-Senator Obama.

There remained one final set of claims not affected by the putative end of the program: CCR asked the court to order the government to destroy any records of surveillance of CCR attorneys and legal staff.

Press Release

Panel judges Pregerson, McKeown, and Hawkins suspend oral argument in the wake of the U.S. Supreme Court's grant of certiorari in Clapper v. Amnesty, the ACLU's challenge to Congress's 2008 amendments to FISA

Related Files

President Bush signs into law the (ironically named) Protect America Act of 2007

August 5, 2007

President Bush signs into law the (ironically named) Protect America Act of 2007

The Protect America Act broadly expands the federal government’s power to conduct surveillance on Americans without a court warrant. The bill went beyond earlier reports that the new law would merely allow the government to listen in to communications between two overseas parties that just happen to route through a switching circuit located in the U.S. Under the new statute, the Attorney General and Director of National Intelligence may approve listening in on the conversations of people in the U.S., including citizens, so long as the target of the surveillance is “reasonably believed” to be abroad, with no prior review by the courts.

August 1, 2007

Revelations that FISA court judge refused Government’s request for a “basket warrant,” which would allow surveillance of multiple people rather than warrants issued for specific individuals

August 1, 2007

Revelations that FISA court judge refused Government’s request for a “basket warrant,” which would allow surveillance of multiple people rather than warrants issued for specific individuals

Related Files

Government announces it will let existing warrantless NSA surveillance program expire

January 17, 2007

Government announces it will let existing warrantless NSA surveillance program expire

Attorney General Alberto Gonzales announces that the President has decided to let the existing warrantless NSA program expire, rather than continuing to reauthorize it, because the administration has convinced a single judge of the FISA court to issue a number of orders that, according to Gonzales, will allow the same sort of surveillance to occur pursuant to the court's orders

December 15, 2006

The case is transfered

December 15, 2006

The case is transfered

Judicial Panel on Multidistrict Litigation orders the case transferred to the same court in San Francisco where the Electronic Frontier Foundation's case, Hepting v. AT&T, and several dozen other cases against private telecommunications companies, are being heard. The case is transferred to the court of Judge Vaughn Walker

Government submits a motion and subsequent letter, seeking to have CCR’s action transferred and coordinated as a “tag-along” action with a number of pending class actions against private telecommunications companies, as well as three other actions brought against the federal government and officials, as defendants

May 26, 2006

Government files Motion to Dismiss and seeks to stay Plaintiffs' Motion for Summary Judgment

May 26, 2006

Government files Motion to Dismiss and seeks to stay Plaintiffs' Motion for Summary Judgment

The government argues that the entire case must be dismissed because, if it were allowed to go forward, it would threaten the secrecy of confidential information essential to national security